Before Duffy, Circuit Judge, and Campbell and LA Buy,
The opinion of the court was delivered by: Campbell, District Judge.
Plaintiff, in urging that the orders of defendant Commission
be set aside and annulled, makes the following arguments:
We now consider plaintiff's first argument, subsections (a)
and (b), which apparently attacks the procedure of the
Commission. Specifically, plaintiff appears to contend that
the Commission's action is contrary to Title 49 U.S.C.A. §
312(a); that the Commission examined the four basic proceedings
upon which plaintiff's presently held certificate is based
without proper hearing; that the findings of the Commission
based upon this examination are erroneous; and finally, that
these erroneous findings were persuasive to the Commission's
The short answer to plaintiff's first contention is that the
orders plaintiff asks us to set aside take no rights from it,
but merely interpret what rights it had from the beginning. It
is apparent from the record that defendant Commission has not
sought to diminish or modify, under the guise of
interpretative action, or otherwise, the operating authority
of plaintiff, but has rather endeavored to provide a
reasonable and fair construction of the same. Since we are
here concerned with the review of an interpretation
proceeding, neither Section 312(a), nor Watson Bros.
Transportation Co. v. United States, D.C., 132 F. Supp. 905 are
applicable. Jones Truck Lines, Inc. v. United States, D.C.,
146 F. Supp. 697, 703. In regard to plaintiff's contention that
the Commission had no right to examine the proceedings behind
the certificate without proper hearing, the following
statement of the Supreme Court in the Nelson case, supra, 355
U.S. at page 558, 78 S.Ct. at page 499, 2 L.Ed.2d 484,
footnote 3 is of particular interest:
In other words, the Supreme Court does not appear to
preclude the possibility of going behind a certificate, even
though it is not considered patently ambiguous which is
exactly the case here. The Commission in its 1957 report, 72
M.C.C. 355, at page 359, makes the following statement:
"Contrary to the claims of respondent, there is
nothing patently ambiguous in the certificate
which applicant holds, and for that reason there
was no necessity for going back of it in order to
determine what was intended. Nevertheless we have
done so, and, as seen, have found nothing to
suggest, even remotely, any right to, or any
intent to grant, any of the commodities covered
by the issues in the title proceeding."
We conclude that the Commission's decision as to the meaning
of the certificate is reached independently by interpretation
of the certificate at face value, while the treatment accorded
underlying background more or less approximates the holding in
the Nelson case. Plaintiff's attempt to discredit the
Commission's evaluation of underlying background by reference
to certain portions of the four basic proceedings re-examined
by the Commission must fail in that the out-of-context
fragments selected by plaintiff are, for the most part,
misleading, and, in no way affect the evaluation of the entire
record. It follows that the contentions of plaintiff in regard
to the examination of underlying background by the Commission
are without merit.
We now consider plaintiff's second argument.
In Descriptions in Motor Carrier Certificates, 61 M.C.C.
209, the Commission established commodity lists under class or
generic headings specifying the commodities to be transported
thereunder which were to be used in describing the commodity
scope of certificates to be issued to motor carriers of
property in the future. While it was expressly stated that
such commodity lists would be binding only on future
certificates, it is axiomatic that the definitions of
commodity descriptions established by the Commission were
based upon the general understanding of these terms within the
motor carrier industry. One of the generic classifications
dealt with by the Commission in the Descriptions case was
"iron and steel articles". The Commission, after extensive
hearings participated in by numerous motor carriers and
interested parties, expressly found at Page 245, that "the
phrase `iron and steel articles' is understood in
transportation circles to mean a list of rough or semifinished
articles made from iron and steel". It is true that this
generic classification has been interpreted to embrace certain
simple, finished products of uncomplicated design, such as
wire garment hangers, or knocked-down steel houses.
Atlanta-New Orleans Motor Freight Co. v. Eagle Motor Lines,
Inc., 69 M.C.C. 257; Deaton Truck Lines, Inc., Common Carrier
Application, 43 M.C.C. 585. However, it is clear from the
Descriptions case and subsequent proceedings that tractors,
traction engines and foundry machinery are much too
complicated to be included in the generic classification,
"iron and steel articles".
As pointed out by the Commission in the 1957 report, 72
M.C.C. 355, at page 359: "Although not controlling they
(commodity lists in the Descriptions case) also may properly
be considered in construing certificates previously issued in
prior cases. * * *." The Commission did not rely on the
Descriptions case as being determinative, but rather noted it
as one of several factors for proper consideration. We find no
error in the Commission's consideration of the Descriptions
As to plaintiff's third argument, it is clear from the
record, from transportation parlance and from various cited
cases that there is nothing patently ambiguous in plaintiff's
As to plaintiff's fourth argument, this contention has been
dealt with in regard the first argument where we held that the
treatment of underlying background here approximates the
consideration given underlying background in the Nelson case,
supra. As such, there is no error.
We now consider plaintiff's fifth argument.
There is little merit to plaintiff's claim that the
testimony of its supporting witnesses
was ignored since the Commission in its 1957 report, 72 M.C.C.
355, 360, states that it has "given full consideration" to
that testimony. The weight to be accorded that testimony is an
exclusive function of the Commission, so long as it does not
act arbitrarily, capriciously or in clear error. Loving v.
United States, D.C., 32 F. Supp. 464, 467. It is only logical
that the Commission, which is appointed by law and informed by
experience to interpret the certificate issued by it, should
be free to draw upon its own accumulative experience in
reaching a decision. National Labor Relations Board v.
Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 97
L.Ed. 377. The scope of the Commission's examination in this
cause, as indicated by the record, is exhaustive as to the
industry and when considered in the light of the testimony of
plaintiff's witnesses, we hold that the action of the
Commission was not arbitrary, capricious or clearly erroneous.
In regard to plaintiff's sixth contention, the Supreme Court
of the United States in Virginian Ry. Co. v. United States,
272 U.S. 658, stated at pages 665, 666, 47 S.Ct. 222, at page
225, 71 L.Ed. .463 that:
"This court has no concern with the correctness
of the Commission's reasoning, with the soundness
of its conclusions, or with the alleged
inconsistency with findings made in other
proceedings before it."
Furthermore, we find that the proceedings cited by plaintiff
such as the Deaton Truck Lines case, supra, discussed in
relation to plaintiff's second argument, are consistent with
the Commission's interpretation of plaintiff's certificate.
1958 Report, 76 M.C.C. 467, 472, 473.
We now consider plaintiff's seventh argument, subsections
(a) and (b).
It is well established law that plaintiff may not raise the
doctrines of estoppel or laches against the United States.
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225-227,
60 S.Ct. 811, 84 L.Ed. 1129; United States v. Summerlin,
310 U.S. 414, 416, 60 S.Ct. 1019, 84 L.Ed. 1283. Nor can plaintiff
assert that its transportation of the items in question over
a period of years renders such transportation legal today.
Andrew G. Nelson, Inc. v. United States, supra. Obviously
then, if at all, plaintiff's argument must bear upon the
intention of the Commission in issuing the specific grants of
authority here in question. It is agreed that plaintiff did
transport the items in question prior to 1935. However, the
record indicates that such shipments were in some cases not
only isolated and infrequent, but they also differed in
geographical location from the specific grants of authority in
question here. The Commission in its 1957 report, 72 M.C.C.
355, having re-examined all the evidence offered in the four
basic proceedings, presents a detailed summary of that record
and then concludes at page 359:
"There is nothing of evidence in any of the
basic proceedings which have been reviewed which
could support a finding that when the various
certificates or any of them were issued it was
contemplated or intended that respondent's
predecessors were being granted authority to
transport tractors, traction engines, tools and
parts for such tractors and traction engines, or
used foundry machinery, or that they understood
they were obtaining such authority."
In any event, if plaintiff believes that the scope of its
certificate is too restrictive when considered against its
background, its remedy is to petition the Commission to reopen
the grandfather proceedings. Andrew G. Nelson, Inc. v. United
States, supra, 355 U.S. at pages 561, 562, 78 S.Ct. at pages
500, 501, 2 L.Ed.2d 484. This proceeding is concerned only
with the interpretation of the certificate as it now exists.
We conclude that the terms, "iron and steel articles", "iron
and steel products" and "iron and steel, and articles made
thereof" have been narrowly construed within the steel and
They have never comprehended finished products of any degree
of complexity or manufacture. 1958 Report, 76 M.C.C. 467,
471-472. Their meaning has historically related to and
embraced the rough and semifinished articles of iron and steel
produced by the steel industry. We find that the Commission's
unanimous determination that tractors and foundry machinery
are not iron and steel articles or products, is not arbitrary,
capricious or clearly erroneous, but, is, on the contrary,
The orders of the Interstate Commerce Commission are
The complaint is dismissed.
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